Responses to the Coup d'etat in Honduras on Sunday June 28, with special emphasis on producing English-language versions of commentaries by Honduran scholars and editorial writers and addressing the confusion encouraged by lack of basic knowledge about Honduras.

Friday, July 10, 2009

As we watch and wait, revisiting the constitutionality of the opinion poll

One of the most persistent claims made in support of the Honduran coup d'etat has been that the opinion poll scheduled for June 28 was inherently unconstitutional, and that President Zelaya, by refusing to follow a court order to suspend it, showed his lack of respect for law and the separation of powers and justified his removal. I have alluded several times to the fact that one would have to be deeply immersed in the specific back-and-forth of the development of the poll to understand how over-simplified these arguments are.

Francisco Palacios Romeo, Professor of Constitutional Law at the Universidad de Zaragoza, Spain, has offered one of the best analyses I have seen. First, in a document dated July 3, he makes six points about the legal issues involved:

(1) the poll "was a question about the possibility to ask another question. Therefore it was an absolutely innocuous question in the short and medium term. A question that would need to be validated by a second question."

(2) the legal findings about the poll were vague and lacked clear basis, with the Supreme Court ruling simply upholding a lower court ruling lacking any clear legal grounding:

The poll was prohibited by a simple Administrative Trial Court, which is a court of first appeal....its only argument was “the implementation [of the poll] would redound in damages of an economic, political, and social character that would be impossible to repair for the State of Honduras” ...The sentence of this Court was supported by a decision of the Supreme Electoral Tribunal which refused to collaborate in the organization [of the poll]. The Supreme Court, finally, issued a short communication full, as well, of generalities and falacious commonplaces. The Supreme Court says:

"...the confiscation [of polling materials] being the execution of a solid legal action ratified by the Administrative Trial Court where the survey sponsored by the Executive, who never paid attention to the orders emanating from the Constitution and the Law, was declared illegal, the Judicial Branch considers that such action is accomplished within a legal framework, based on a legal requirement issued by a competent judge... "

In other words, the Supreme Court upheld the ruling because another court had made the ruling, and hence it was considered legal; and the original Trial Court that made the ruling based its decision on unspecified damages that it predicted would come to pass. Neither of these are arguments rooted in the law or the constitution; Palacios calls them simple-minded and false.

(3) Palacios completely rejects the claim that the poll was unconstitutional. He notes there is no article in the Honduran Constitution prohibiting polls. No article of the Constitution reserves polling to the Supreme Electoral Tribunal (which was the main claim made before the coup). There is no Constitutional bar against either asking about, or even convening, a Constitutional Assembly.

(Indeed, news comes tonight that in 1985, Roberto Micheletti proposed to convene Congress as a Constitutional Assembly, reportedly to alter the articles about presidential term limits to allow then-President Suazo Cordova to remain in office, which would explain why he assumed that had to be President Zelaya's plan; it was what he wanted to do in convening a Constitutional Convention.)

Palacios characterizes President Zelaya as very careful to set up the maximum guarantee of clarity through a two step process of consultation about the opinion of the people on whether to convene a Constitutional Assembly. Palacios questions the very idea of the untouchability of articles of the Honduran Constitution, noting that except for those core articles required to guarantee basic rights, untouchable articles "convert a Constitution into a Bible" and "are an attack against the sacred principle of sovereign Constituent power". He finds that President Zelaya was actually opening a wide-ranging debate on constitutional reform and a wide means of popular participation.

(4) Palacios rejects the claim that the Supreme Electoral Tribunal legally had authority over all direct political participation by the people. While elections are indeed their purview, he notes it is important not to confuse "electoral" with direct popular participation by means of a poll or referendum. The law governing elections passed in 2004, he notes, speaks only of elections in which there is a competition for an elected position. Nowhere in the law does it mention polls or referenda.

Palacios notes that since there clearly is no legal impediment to the President conducting a poll, Congress

tried to create a law at full speed. With that motive, the National Congress tried to approve a new law of Referenda to legitimate their actions, trying to make to it be valid as in force. But the law approved against the clock (in three days) is not a valid law, since it lacked the entire later process of presidential approval or, in this case, a long process of possible presidential veto.

This law was passed by Congress on June 24-- the Wednesday before the scheduled vote. It defined polls as requiring 51% of registered voters to participate-- a level not achieved even in elections in Honduras-- and limited the practice of polls within six months of any election, thus making a previously scheduled poll suddenly illegal. It was this law that defined polls as a matter for the Supreme Electoral Tribunal. The new law also defined as not subject to polling not only the so-called stone articles of the Constitution, but also "social polls", themes having to do with taxation, public credit, or currency, and international treaties. The breadth of what was ruled as not open to public input is critical to note. Palacios notes that as long as polls do not distort established legal proceedings, they "should be legal by definition and by democratic principles, since the opinion/participation of the sovereign people should always be the first premise of every democracy".

(5) Palacios takes on the post-facto rationalization the Supreme Court offered for the raid and expatriation of President Zelaya as well. He notes that a disagreement between branches of government cannot legitimate removing the President from office. This he notes is a normal conflict in many democratic political conjunctures. There exist mechanisms and general Constitutional theory to resolve such conflicts. He notes that around the world, courts rule against executive branches of government constantly, without taking these extreme steps.

(6) Finally, Palacios takes on the claim that the Army was carrying out a constitutional role in its use of force. This assertion by the Supreme Court, that the "the Armed Forces acted in defense of the State of Law as defenders of the dominion of the Constitution", raises precisely the specter of militarization of government that Rodolfo Pastor Fasquelle has been pointing out is one of the legacies of the coup.

Instead, as Palacios demonstrates, the Honduran Constitution affirms the role of the President as Commander in Chief; the Armed Forces are thus not an independent branch of government; the constitution explicitly denies them a deliberative role.

Second text: Lessons of Participatory Democracy about Article 5

Responding to reactions to his original article, Palacios gave an interview to Telesur. In it, he considers the question of when the people can express their opinion about the possibility of a Constitutional Assembly, or when any such possibility is prohibited?

In this long article, this constitutional law scholar points out that the Honduran Constitution, which does make statements about "plebiscites" and referenda, does not make any statements about polls. He points out that Article 5 of the constitution defines very restricted means for constitutional reform, which if they are interpreted as making it impossible to reform the constitution would violate the presumption that the mandate of the constitution flows from the will of the people.

He then shows that Articles 5 and 45 of the Constitution actually call for unimpeded democratic participation. This is followed by a detailed discussion of the Law of Civic Participation of 2006, which he characterizes at length as filling in the omissions and silences in the Constitution concerning participatory democracy.

Article 2 of this law, he notes, defines core principles of "a very advanced and extensive model of participation and direct consultation of the people": Participatory Democracy; Stewardship; Solidarity; Legality; and Respect are each defined as fundamental to democratic participation.

Given the lack in the constitutional of a defined way to undertake reform; the "dogmaticism" of the claim that some parts of the constitution cannot be revised, which breaks "the sacred principle of Constituent Power"; the inviability of plebiscites and referenda for specific questions like that to be set June 28; the participatory call of Article 5, and the implications of Article 45 of the Constitution; and the content of the Law of Civic Participation, he finds the proposed poll entirely legitimate and in keeping with the Constitution and established law.

10 comments:

I wanted to ask you re the "Plebiscite and Referendum" vote on the 22nd. It seems incredible to me that the Micheletti faction was able to whip nearly the entire congress into a yes vote, especially for a law that was so obviously improvised.

The Honduran Congress is almost one faction. That is the political reality. One of the points that the US press perhaps misses, because it repeats the claim that the Executive Branch is powerful, is that Congress-- untroubled by term limits-- is where politicians can virtually remain forever. Micheletti has been in Congress for more than 25 years.

But it goes beyond mere longevity. The Honduran Congress is a single chamber, so the check and balance provided in the US by Senate and House, and in Britain in theory by the upper and lower houses of parliament, does not exist.

Moreover, elections are not from territorial districts. Those running for congress are thus less indebted to any local constituency, and more to what Rodolfo Pastor Fasquelle notes are seven party bosses who control access to a place on the ballot.

What is at stake for this cozy system in public consultation is precisely the kind of assessment of whether the public approves of their way of doing business. The one clear sign that the public is not enamored of the system of government has been the declining level of participation in elections.

In the 1980s, participation was characterized as 80-85% of eligible votes. (This was fueled by the political patronage system, according to most analysts, but still is notable.)

In 2005 (the most recent election) this dropped to 43% of the eligible electorate.

My source for the statistics, a UCSC database, quoting a Honduras Country Report for November 2006 from the Economist Intelligence Unit, says these results

reflected the discontent with an electoral process that was characterised by a lack of proposals to solve Honduras’s long-standing problems, leading to scepticism about the nature of democracy under the country’s existing political structure.

During Friday's House Subcommitte Hearing, it was repeated at least a couple of times how the law was passed "with almost unanymous support". Reading your answer, it doesn't sound that impressive now; in fact would have have been perhaps more surprising had it broken out less so, especially after, what 5 rounds of debate, and I imagine lots of arm-twisting til 3 in the morning.

I can imagine that Micheletti, after those 25 years, built up a lot of loyalties and chips to cash in. And the non-geographical representation I had heard of before, but the fact that no Diputado is tied to a real constituency, other than the party bosses, seems to make for a situation with real monolithic thinking.

If someone says the Ley de Plebiscita passed on June 24 was supported unanimously, they are lying.

Here's what La Tribuna, one of the anti-Zelaya papers, said at the time:

While this polemical decree was not approved by consensus, it counted on the support of the seats of the Liberal Party, National Party, Christian Democrat Party, and PINU party and the abstention of the UD (Democratic Unification) parlementary delegation. (Emphasis added.)

A small lie, but a lie indeed. I do not have time right now to find an article that gives the number of delegates who actually voted for this, but I would note that claims about support for such actions as the appointment of Micheletti have subsequently been falsified as congresspeople take the risk of going on record as not having voted as claimed.

I have to say that I'm not entirely satisfied with Palacios Romeo's analysis. I haven't seen any explanation of what would have happened if the poll had shown approval for a constitutional convention but the Parliament had declined to hold one, or whether 50%+1 or 66% or what level would have been sufficient to force the plebiscite. Nor--and this is important--how the delegates to the constitutional convention would have been chosen had a plebiscite been held. The whole process seems so vague that a court should have forbidden it on that basis rather than trumping up spurious rationales.

It's also clear that Zelaya was engaged in civil disobedience, ignoring court directives (though as you showed below, the courts are completely muddled) and the clear sense of Parliament. Whether ignoring them was legal or not, I don't know, but it's not good governance. Granted, Honduras has very little good governance and lots of bad.

I think a lot of whether Zelaya was in the right or in the wrong (up to the point of the actual coup, at which point the coupistas are 100% wrong) hinges on how much control he could have exerted on the process of delegate selection to the Constitutional Convention. If he could have exerted perfect control, then obviously he could have directed the re-writing of Article 4. If he exerted zero control, then he could not have directed the re-writing of Art. 4. Unfortunately, our media are determined not to explain any of these issues to us.

It has been entertaining to watch conservatives take the objectively pro-criminal side by declaring that we should embrace the coup.

It is important, as the US media and politicians continue to miss this point, to reiterate: removing President Zelaya from the country was unconstitutional; using the army to remove him was dangerous; he remains the only legally-elected President of Honduras. Whether his policies were good or effective is a separate issue. Not all those protesting the illegal coup d'etat were supporters of his.

That said, the lack of clear discussion of the way a constitutional revision might have played out remains a huge gap. I will be posting next on this, but with respect to Micheletti's participation in 1985 in a much more radical attempt to change the constitution.

So on the possible outcomes of Zelaya's proposal: the Sunday poll only asked whether people would want the so-called "cuarta urna" (fourth ballot box) installed in November.

So nothing would have happened until November. At that time, a question-- whose wording was not yet determined-- could have been placed before the populace. (The poll was non-binding, so "could" not "would".) Zelaya's statements, and those of his government, repeatedly, before the coup as well as after, said the question in November would have called for a constituent assembly sometime in 2010. Explicitly, Zelaya repeatedly stated that by the time of such an assembly, he expected to have finished his term, as scheduled, in January 2010.

How such an assembly would have been formed is probably in fact the thing frightening to current power elites. Zelaya's government wanted this to be participatory, not representative. The difference is that participatory means somehow, the people at large would have been able to elect delegates. This would go against the current representative framework, in which the Honduran Congress is understood to speak for the people. In 1985, the technical coup attempt would have made Congress-- a tiny number of people-- the Constituent Assembly.

Some members of the Zelaya government have argued popular participation should include local representation (which the Honduran congress does not provide) and ensure representation of certain protected groups (the formally recognized indigenous groups of Honduras, which includes the recognized priority in the country of the afro-caribbean Garifuna).

So the question, would Zelaya have been in control? actually may miss the real point, which is would anyone have been in control?

Read Rodolfo Pastor Fasquelle's editorial posted some time ago here. His point, and that of other principled members of the government, is that the process of a constitutional convention should include vigorous debate about what a modern constitution for Honduras should look like.

By the way, not sure where in the Supreme Court's document you found a statement about the vote of the Congress on the Law of the Plebiscite. A specific page number would help. I have read through this a couple of times and don't remember that detail. I will continue to seek the vote numbers but my argument is that if Zelaya broke a law (and remember, he never got to carry through on the poll), then the legal action was to pursue him for that.

In your upcoming post on the constitutionality question, could you try to address a little bit of Miguel Estrada's article in the LA Times. It seemed, on it face, very facile to me. (His point that Zelaya deserved to be deposed for an obscure polling matter, but that the military's extradition of him to Costa Rica was simply regrettable seems crazy to me) However, some of the other arguments he made I don't feel I quite got a good grip on.

The decree, PCM-019-2009, which came out, I believe, on the 27th of June, and changed the wording "consulta" for "encuesta de opinión pública" was never ruled on by the Supreme Court, or was it? I didn't see anything about that in the "Comunicado Especial".

Raj, I don't think I have ever been unclear that the use of military force to kidnap and expel an elected official is illegal, no matter what justifications are offered.

I agree with you that the timing of events is central to understanding whether the objections to what Zelaya did even made some sort of sense, and that it certainly doesn't look that they even rose to that level. However, we should be conscious that we can't read minds. One fellow at my website said that perhaps Zelaya wanted to allow re-election for some other president (or himself at some later date), both of which would have been against the Constitution. One can't disprove that, but one can point to the fact that if Zelaya did not control the delegate selection process and agenda of the proposed Constitutional Convention, then neither can he be said to be responsible for proposing "continuismo."

Here's an analogy. Suppose there is a gun in a locked case. A man takes the gun out of the case, lays it on a table, and walks away. One cannot charge the man with attempted murder. Once he lays down the gun, he ceases to control it... it might as well be used to murder him. On the other hand, if one could prove he conspired with someone else to use the gun to murder someone, then he could be charged with murder. Control of delegate selection for the Constitutional Convention is analogous to conspiracy.

As for "not sure where in the Supreme Court's document you found a statement about the vote of the Congress on the Law of the Plebiscite," the link got messed up. The correct link is here.

The argument that Zelaya must have intended to change term limits is precisely based on claims to read minds. I offer several pieces of evidence that there were other reasons the Zelaya government pursued a Constitutional Assembly.

Legal action needs to be based on evidence of actions, not imputed intentions. The question of imputed intentions is a fine one for political debate, but in the present case is a luxury I think we cannot afford. US congresspeople and press repeat the claim that Zelaya was calling for presidential continuity. This is not true. Hence my forcefulness on this. Not intended to criticize anyone commenting specifically; a reminder, to quote a rebuke I recently suffered from a wise scholar and activist, that these are not abstract debates but consequential.

Since the argument about Zelaya's purported intentions has become one of the talking points repeated to justify the coup, I find it necessary especially to refrain from reading his mind. If someone finds me a statement he made, that would be different.